Permissions granted before the 2020 use class changes

A planning permission granted before 1 September 2020 still means what it meant when it was issued. That is the single point to hold on to when you are reading a condition that refers to Class A1, A2, A3 or D1, because the use class changes transitional provisions in the amending regulations preserved those references rather than translating them into the new classes. The old restriction survives. What has changed is everything around it: the classes themselves, the permitted development rights that sat on top of them, and the freedom a tenant now has to move within Class E where no condition stands in the way.

What the 2020 amendments did

The Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020 rewrote the Schedule to the Use Classes Order 1987 with effect from 1 September 2020. Classes A1, A2 and A3 disappeared, along with D1 and D2. In their place came Class E, covering commercial, business and service uses across limbs from E(a) to E(g), Class F1 for learning and non-residential institutions, and Class F2 for local community uses.

Two of the old classes were not re-homed at all. Drinking establishments, formerly A4, and hot food takeaways, formerly A5, were added to the list of uses in article 3(6) of the Order that belong to no class. They became sui generis, which means any change to or from them is development. Our note on the hot food takeaway as a sui generis use works through what that does to a shop-to-takeaway proposal.

Inside Class E, movement is free. Article 3(1) of the Order says that using a building for another purpose in the same class is not development, so a former bank can become a gym, a nursery or an office without an application, as our piece on moving within Class E without a planning application explains.

How an existing permission is read after the change

The amending regulations included saving provisions for exactly this situation. Where a planning permission, or an instrument such as a section 106 agreement, granted or made before 1 September 2020 refers to a class in the 1987 Order, that reference continues to have effect as a reference to the class as it stood immediately before that date.

So a 2011 permission conditioned to "use as an A3 restaurant and for no other purpose" is still a permission for an A3 restaurant, and A3 still means the sale of food and drink for consumption on the premises as the old Schedule defined it. The occupier cannot argue that A3 has become E(b) and that Class E freedom therefore applies.

The same reasoning runs in the other direction. A permission granted in, say, 2014 for a D1 medical use is not widened into the whole of Class E just because D1 no longer appears in the Schedule. The condition fixes the use at what the old class described.

Conditions naming a class that no longer exists

Reading one of these conditions properly takes three passes.

1. Read the condition itself, in the context of the permission as a whole, as the Supreme Court set out in Trump International Golf Club Scotland v Scottish Ministers. The exercise is objective, from the standpoint of a reasonable reader with knowledge of the relevant context, not an inquiry into what the officer intended.
2. Read the stated reason. A condition restricting a unit to A1 "in the interests of maintaining the vitality and viability of the designated shopping frontage" is aimed at a retail frontage. One imposed "to protect the amenity of neighbouring residential occupiers" is aimed at noise, hours and cooking smells, and a different use inside the old class might sit comfortably with it.
3. Read the description of development in the permission itself. The description can restrict the use independently of any condition, and the authority is entitled to rely on it.

Whether a condition also removes permitted development rights is a separate question with its own line of authority. The Court of Appeal in Dunnett Investments held that a condition confining a use to a defined purpose "and for no other purpose whatsoever" was sufficiently clear to exclude the change of use rights in the General Permitted Development Order. Wording that merely names a class, without that kind of exclusionary language, generally does not.

The transitional window that has now closed

For a period after the new classes came in, the old class references in the General Permitted Development Order were preserved so that existing change of use rights kept working while the Order caught up. That window closed on 31 July 2021. From 1 August 2021 the Part 3 rights are expressed in the current classes, and the commercial to residential route became Class MA, with its own qualifying conditions and prior approval matters, covered in our guide to Class MA commercial to residential prior approval.

The practical residue of that window is a small population of prior approvals granted in 2020 and 2021 under the old references. Where one of those is still unimplemented, read it against the rights as they stood when it was granted, not against the current text.

Does the old restriction still limit occupation

Sometimes the honest answer is that nobody knows until the authority is asked, and a certificate is the only way to settle it.

Three situations come up repeatedly. A unit conditioned to A1 where the landlord wants a Class E letting to a gym. A former surgery conditioned to D1 where the proposal is a day nursery, which would now be E(f) but was also D1 under the old definition and so may already be within the condition. And a unit where the condition names a class but the building has been used for something else, openly and continuously, for long enough that the unauthorised use has become immune from enforcement.

For the first, the condition bites and something has to be done about it. For the second, the answer may be that the proposal is already permitted, and an application under section 192 of the Town and Country Planning Act 1990 for a certificate of lawfulness of proposed use will confirm it. For the third, a certificate under section 191 is the route, and the evidence has to be documentary rather than assertion: business rates records, accounts, utility bills, dated photographs, statutory declarations from people who were there.

Where a section 73 application is needed

If the condition blocks the use, apply under section 73 of the 1990 Act to vary or remove it. Two constraints shape how that application is framed.

The first is Finney v Welsh Ministers, in which the Court of Appeal confirmed that section 73 cannot be used to alter the description of development in the permission. If the description itself names the use, section 73 will not fix it and a fresh application is needed.

The second is that a section 73 grant produces a new permission, and on the reasoning in Lambeth London Borough Council v Secretary of State the restrictions that were part of the original scheme are not simply lost because the new decision notice omits them. Draft the application so that the permission you end up with says what you think it says.

A section 73 application is decided against the development plan and the reason the condition was imposed, so the supporting Planning Statement needs to address that reason directly. Where the condition protected a shopping frontage, the evidence is about the frontage as it is now: vacancy, the mix of occupiers, and what the adopted plan's retail policy actually requires. Where it protected amenity, the evidence is about hours, servicing and plant.

The Levelling-up and Regeneration Act 2023 inserted a further power, section 73B, intended to allow a wider range of variations. Check whether it is in force, and what regulations have been made under it, before relying on it, because the position has moved since the Act received Royal Assent.

Checking a title before taking an assignment

Before advising on a lease assignment or a purchase, pull the full planning history rather than the most recent decision notice. Conditions from a 1990s estate permission bind later units on that estate. Section 106 obligations can restrict occupation in terms the planning permission does not repeat. And a prior approval granted during the transitional window may carry references nobody in the current team recognises.

Where the history is incomplete, the authority's planning register and its scanned decision notices are the starting point, and a section 191 or 192 certificate is the end point. Budget for it in the transaction rather than hoping.

This is general guidance, not legal advice. Check the position with your local planning authority or a qualified professional before relying on it.

Enter your postcode on PlanScope to see which supporting documents a change of use or section 73 application on your site is likely to need.

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